Does anyone know whether the petition under the new Gov. Code Sec. 411.081(d) (SB1477) should be filed in the criminal case or as a new civil case in the same court as the criminal case?

Our clerks want to file the petitions in the criminal case and just charge the $28, but one of our clerks was given a statement of Legislative Intent from Terry Keel, Chair of House Committee on Criminal Jurisprudence that said, "A petition filed pursuant to the terms of this act should be filed as an ex parte petition on the civil docket of the court that originally granted the deferred adjudication. In addition to the $28.00 fee specified in the bill, the clerk should also assess the same fees that would otherwise apply to the filing of a civil petition."

It seems to me that then you would have two cases to keep confidential in order to protect the information. Harris county posted a helpful write up and sample forms and it appears they are filing it in the criminal case.

Any thoughts?

[This message was edited by Abby Warren on 04-22-04 at .]

In Dallas County, the petitions are filed with the trial court under the trial court cause number. Reason: The order of nondiclosure attaches to the nonadjudiction of guilt and dismissal, and not the arrest. The petitions are investigated by the individual trial prosecutors assigned to the courts and, if the prosecutor determines there is no reason to oppose the petition, the prosecutor files a document noting the DA's agreement.
Dallas county charges the "regular" filing fee associated with civil filings and adds on the $28 comptroller fee.
Fee free to contact me if you have any questions.

I have instructed the clerks in my county to file the petition in the criminal cause number and only charge a $28 fee. Otherwise it is too complicated to have two files to deal with. A plain reading of the statute indicates the fee of $28, despite what the committee chairman has opined in his letter.

I agree...I've given the same opinion to my clerks with the caveat that we will have to change our procedures if the AG ever opines differently. Thanks for the advice!